Citation NR: 9742291
Decision Date: 12/23/97 Archive Date: 12/30/97
DOCKET NO. 96-26 308 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
Entitlement to compensation benefits pursuant to 38 U.S.C.A.
§ 1151.
(The issue of entitlement to fee-basis outpatient medical
care authorization
card will be the subject of a separate appellate decision.)
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Orfanoudis, Associate Counsel
INTRODUCTION
The appellant had active duty for training from March 1965 to
September 1965.
This matter arises before the Board of Veterans’ Appeals
(Board) from an October 1991 determination of the Department
of Veterans Affairs (VA) Regional Office (RO) in Houston,
Texas, which determined that the appellant was not entitled
to compensation benefits. The appellant submitted a timely
notice of disagreement and perfected a substantive appeal.
The appellant appeared at a hearing before the Board in
Washington, D.C. in November 1997, over which the undersigned
Board Member presided.
REMAND
The appellant was denied entitlement to compensation benefits
and a fee-basis outpatient medical care authorization card
because it was determined that his service consisted solely
of active duty for training which did not qualify him for
benefits. As such, the appellant, in essence, is not
considered to be a veteran.
During the hearing before the Board, the appellant and his
representative indicated that he is concurrently seeking
entitlement to service connection for a back disability.
Entitlement to service connection for a back disorder was
denied by the Board in a decision dated in June 1986. This
decision Board is final and can only be reopened pursuant to
submission of new and material evidence. The appellant’s
representative indicated that the appellant was prepared to
submit new and material evidence with regard to his claim.
The appellant also raised the issues of entitlement to
service connection for a knee disability, hearing loss
disability and for tinnitus.
The Board is of the opinion that a determination of
entitlement to service connection for the foregoing
disabilities is inextricably intertwined with the issues
presently before the Board. The RO’s determination as to
whether the appellant is entitled to service connection for
the pending claims is vital to the issue of entitlement to
compensation benefits and a fee-basis outpatient medical care
authorization card. Therefore, the Board is of the opinion
that a decision regarding entitlement to compensation
benefits pursuant to 38 U.S.C.A. § 1151 (West 1991) and a
fee-basis outpatient medical care authorization card must be
deferred until the RO adjudicates the issues regarding
entitlement to service connection for back, knee, hearing
loss and tinnitus as raised by the appellant. In this
regard, the appellant during his hearing indicated the he
served on active duty with the United States Army from
January to July 1964 and received a hardship discharge. The
DD 214 indicates that he had on month and 13 days of prior
service. He has lay evidence indicating the he served with
the National Guard until 1971.
Additionally, it is the opinion of the Board that
clarification of the appellant’s representation is necessary
prior to final disposition of this case. The appellant was
initially represented by the Texas Veteran’s Commission.
Subsequently, the appellant submitted a power of attorney
indicating that he would be represented by Disabled American
Veterans (DAV). In July 1996, the appellant submitted a
statement in support of claim designating The American Legion
as his representative. A power of attorney designating The
American Legion as the appellant’s representative is not of
record. The appellant was represented at the November 1997
hearing before the Board by DAV. Therefore, on remand, the
appellant should be requested to clarify the matter of his
representation and, if necessary, to execute the appropriate
form for properly designating his current representative.
It is the opinion of the Board that additional evidentiary
development is needed prior to further disposition of this
case. Accordingly, the case is hereby REMANDED to the RO for
the following actions:
1. The RO should request that the
appellant clarify the matter of his
representation. The RO should ascertain
whether or not the appellant is
represented by DAV, another private
attorney, a recognized organization, an
agent, or another person properly
designated to represent him in the
prosecution of his claim. The RO should
provide the appellant with the
appropriate forms used for designating
representatives.
2. The RO should undertake the necessary
development regarding the appellant’s
claims for service connection for knee
and back disabilities, hearing loss, and
tinnitus (please see hearing testimony),
to include verification of the
appellant’s first period of active duty,
service in the National Guard, obtaining
any associated service medical records,
informing the appellant of the
requirements necessary to establish his
claims, and that he has the opportunity
to submit evidence in support of his
claims.
3. Upon completion of the foregoing, the
RO should adjudicate the issues of
whether new and material evidence has
been submitted to reopen a claim of
entitlement to service connection for a
back disability, and service connection
for a knee disability, hearing loss and
tinnitus. If the benefits sought are not
granted the appellant and his
representative should be notified of that
denial and of his appellate rights.
4. If the above decision is favorable or
if any additional information is received
verifying that the appellant served on
active duty, the RO should readjudicate
the issue of entitlement to compensation
benefits under 38 U.S.C.A. § 1151 and
refer the case to the VA Medical Center
in Houston, Texas for a determination as
to whether he is entitled to a fee-basis
outpatient medical care authorization
card. If the benefits sought are not
granted the appellant, and his
representative should be furnished with a
supplemental statement of the case and an
opportunity to respond. The case should
thereafter be returned to the Board for
further review, as appropriate.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ROBERT P. REGAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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